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Greenwool & Ors on behalf of the Kowanyama People v State of Queensland [2012] FCA1377 (Kooyama People Part B)
Date:	5 December 2012
Sub Category:	Consent Determination (Native Title Act)
Place:	Located on Cape York Peninsula
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State/Country:	Queensland, Australia
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	In the vicinity of the Nassau river and tributaries, on the western side of the Cape York Peninsula.
Legal Status:	Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference:	Tribunal file no.: QCD2012/016 Federal Court no.: QUD6119/1998
Alternative Names:	Kowanyama People Part B
Subject Matter:	Access \| Native Title \| Recognition of Native Title or Traditional Ownership
URL:	http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/NNTR_details.aspx?NNTT_Fileno=QCD2012/016
Summary Information:
Between: GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL MICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE; (APPLICANTS) and STATE OF QUEENSLAND; COMMONWEALTH OF AUSTRALIA; KOWANYAMA ABORIGINAL SHIRE COUNCIL; CARPENTARIA SHIRE COUNCIL; COOK SHIRE COUNCIL; TABLELANDS REGIONAL COUNCIL; ERGON ENERGY CORPORATION LIMITED; TELSTRA CORPORATION LIMITED; GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD;HARVEST HOME HOLDINGS PTY LTD; MDH PTY LTD; DOUGLAS PRICE; and AIRSERVICES AUSTRALIA (RESPONDENTS) Judge: Dowsett J Where made:Kowanyama Determination: Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights in relation to land. Native title exists in relation to that part of the Determination Area described in Part 1 of Schedule 2 but does not exist in relation to that part of the Determination Area described in Part 2 of Schedule 2. (See attached) Native title is held by The native title holders are the Kowanyama People who comprise those people known as the Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin Peoples. The Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples are those Aboriginal people who are: the cognatic descendants of: (i) Solomon Minyalk; (ii) Thin Mitin Mart; (iii) Min Yal Panaurin; (iv) Art Kadlaurin (v) any of the siblings Kal Koral, Kor Mart, Min Koko Taren or Mad Len; (vi) Pow Mon Alithanem; (vii) Kauan Kor Mar�pen; (viii) any of the siblings Paul, Rioor Biddy; (ix) Yor Kantl Yamen; (x) any of the siblings Mark, Barnabas or Kate; (xi) Arthur, the father of Smiler Misson; (xii) Luke; (xiii) any of the siblings Native, Wilson, Akul Edngan, Uyan or Ginger; (xiv) any of the siblings Major, Sergeant, Bobella or Gregory; (xv) Mickey; (xvi) Boandonolly (aka Puntanolli); (xvii) George Black (aka Thamil Polp); (xviii) either of the brothers�Barramundi� Charlie or Lamp; (xix) Gilbert; (xx) Eagleman, the father of Barney Jubilee; (xxi) Joe Highbury; (xxii) Jackson; (xxiii) Tent (aka Thol Kol Kith); (xxiv) Bruno (aka Wurrpwin) (xxv) Min Kawlto Tower Moilin; (xxvi) Wo Pam Mal Yamin; (xxvii) Mokara Hudson; (xxviii) either of the siblings George or Purt Ngon; (xxix) Bob Patterson; (xxx) Moses (aka War�luran); (xxxi) Yowalyamen; (xxxii) Jolly; (xxxiii) either Mailman or his siblings; (xxxiv) any of the siblings Stephen, Louie, Reubin (aka Robin), Jimmy Braddsley, Mabel Rio or Poppy; (xxxv) Old Mokara; (xxxvi) Taw Wil Yir; (xxxvii) Colin Dinghy; (xxxviii) Fred Dunbar; (xxxix) Alick (aka Alec and Kauwunbengk); (xl) Goanna (aka Melder); (xli) Pluto; (xlii) either Mundie Shalfo or hissister; (xliii) Piper; (xliv) Willie Daphney; (xlv) any of the siblings Fanny, Lucy Tommy, Waterloo, Elsie or Tommy Burns; (xlvi) Nipper; (xlvii) Dick; (xlviii) Peppo; (xlix) Ben; (l) Smiler; (li) Bernard; (lii) Monday; (liii) Kangaroo; (liv) Mosquito; (lv) either of the brothers Billy Flower or Goggle-Eye or their siblings; (lvi) Jimmy; (lvii) either of the brothers Rainbow Christie or Bowyang Charlie; (lviii) Nellie; (lix) either of the brothers Bob Dunbar or Bendigo or their siblings; (lx) any of the siblings Jimmy Koolatah, Coglin Dick, Kunjen Dick or George Murray; (lxi) Frank Yam; (lxii) Brumby (aka Jack Brumby) (lxiii) Old Mud; (lxiv) Charlie Inkerman; (lxv) any of the siblings Mimosa, Alison or May; or (lxvi) Maggie; or 2. recruited by adoption, in accordance with the traditional laws and customs of the Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples. The exclusive native title rights over the determination area other than in relation to water consist of the rights to possession, occupation, use and enjoyment to the exclusion of all others. The nature and extend of the native title rights and interests in relation to land and waters within the Determination Area are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) hunt and fish in or on, and gather from, the land and Water for non-commercial, cultural, spiritual, personal, domestic or communal purposes; (c) take, use, share and exchange Natural Resources for non-commercial, cultural, spiritual, personal, domestic or communal purposes; (d) take and use the Water for cultural, personal, domestic and non-commercial communal purposes; (e) live and camp on the area and for those purposes erect shelters and other structures on the area; (f) light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation; (g) be buried and bury native title holders within the area; (h) conduct ceremonies on the area; (i) hold meetings on the area; (j) teach on the area the physical and spiritual attributes of the area; (k) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from harm; and (l) be accompanied on to the area by those persons who, though not native title holders, are: a) spouses or partners of native title holders; b) people who are members of the immediate family of a spouse or partner of a native title holder c) people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or d) people who have specialised knowledge based on their training, study or experience who are requested by native title holders to observe or record traditional activities or otherwise to investigate matters of cultural significance on the Determination Area. These native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others. Registration of ILUAs The native title determination will take effect upon the following agreements being registered on the Register of Indigenous Land Use Agreements: - QI2003/027 Udnat ILUA [a.k.a. "Koolatah Station ILUA"]; - QI2013/007 Kowanyama Pastoral Area ILUA; and - QI2013/003 Carpentaria Shire Council Kowanyama Area ILUA (Part B) All of the ILUAs were registered on the Register of Indigenous Land Use Agreements as at 5 June 2013. The conditions attached to the determination have therefore now been met and the determination came into effect on 5 June 2013. Further Interests The parties consent that there are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) and other resources legislation. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the native title holders. Other rights and interests that exist in the determination area include: The nature and extent of Other Interests in the Determination Area are the following as they exist at the date of this Determination: 1. The rights and interests of: (a) the lessee and others under a term lease being title reference No. 40056449 comprising Lot 473 on SP206203; (b) the lessee and others under a term lease being title reference No. 17668107 comprising Lot 4695 on PH1656; (c) the lessee and others under a term lease being title reference No. 17668057 comprising Lot 1796 on PH1651; (d) the lessee and others under a term lease being title reference No. 17668063 comprising Lot 2322 on PH2031; (e) the lessee and others under a term lease being title reference No.17668080 comprising Lot 2457 on PH2043; (f) the lessee and others under a term lease being title reference No. 17668081 comprising Lot 2480 on PH2046; (g) the lessee and others under a term lease being title reference No. 17668082 comprising Lot 2485 on PH2048; (h) the lessee and others under a term lease being title reference No. 17668114 comprising Lot 3 on MM2; (i) the lessee and others under a term lease being title reference No. 17668119 comprising Lot 5174 on PH892; (j) the lessee and others under a term lease being title reference No. 40004783 comprising Lot 746 on OL298; (k) the lessee and others under a term lease being title reference No. 17668055 comprising part of Lot 893 on FK2; and (l) the lessee and others under a term lease being title reference No. 17669201 comprising Lot 13 on CTH3. 2. The rights and interests of the State of Queensland in the following reserves, the rights and interests of the persons in whom they are vested and the rights and interests of the persons entitled to access and use those reserves for the respective purpose for which they are reserved: (a) title reference No. 49007030 comprising Lot 1 on CTH1 (b) title reference No. 49007031 comprising Lot 2 on CTH1. 3. The rights and interests of the State of Queensland and the Cook Shire Council to access, use, operate and maintain the area delineated as road on plan SP206203 for its dedicated purpose and the rights and interests of the public to access and use the road. The rights and interests of Cook Shire Council including any rights the Council, its employees, agents or contractors have: (a) as part of its Local Government powers and responsibilities including under the Local Government Act 2009 (Qld), the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and �Local Government Acts� as defined in the Local Government Act 2009 (Qld); as the owner and operator of valid infrastructure, facilities and other improvements located in the Determination Area as at the date of the Determination; (c) as the operator of undedicated but constructed public roads; (d) to enter the Determination Area in compliance with any legislative requirements regarding notice or otherwise - (i) to exercise lawful rights conferred on the Council under (a); (ii) to inspect, maintain and repair the infrastructure referred to in (b) and (c); and (iii) to undertake operational activities in its capacity as a Local Government such as feral animal control, weed control, erosion control, waste management and fire management. 5. The rights and interests of Carpentaria Shire Council including any rights the Council, its employees, agents or contractors have: (a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within its local government area, as defined in the Local Government Act 2009 (Qld); (b) as the:- (i) holder of any validly granted licences, permits or other rights and interests which were granted as at the date of the Determination; (ii) trustee of any validly gazetted reserves that exist in the Determination Area as at the date of the Determination; (c) as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the Determination including but not limited to: (i) dedicated roads controlled by Council; (ii) gravel pits operated by Council; (d) as the manager of undedicated but constructed roads except for those not operated by Council; (e) to enter the land described in paragraphs 5(a) to 5(d) in compliance with any legislative requirements regarding notice or otherwise to: (i) exercise any of the rights and interests referred to in paragraphs 5(a) to 5(d); (ii) inspect, maintain and repair the infrastructure facilities and other improvements referred to in paragraphs 5(c) and 5(d); and (iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management. 6. The rights and interests of the Tablelands Regional Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), and under the Land Protection (Pests and StockRoute) Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the declared local government area. 7. The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including the rights and interests existing by reason of the force and operation of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under the following legislation: (a) the Mineral Resources Act 1989 (Qld); (b) the Forestry Act 1959 (Qld); the Water Act 2000 (Qld); (d) the Integrated Planning Act 1997 (Qld) or the Sustainable Planning Act 2009 (Qld); (e) the Transport Infrastructure Act 1994 (Qld); and (f) the Land Act 1994 (Qld). 8. The rights and interests of Telstra Corporation Limited: (a) as the owner or operator of telecommunications facilities installed within the Determination Area; (b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights: (i) to inspect land; (ii) to install and operate telecommunications facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and (d) under any lease, licence, access agreement or easement relating to its telecommunication facilities in the Determination Area. 9. The rights and interests of the parties under the following agreements: (a) the Koolatah Station ILUA; (b) the Kowanyama Pastoral Area ILUA; and (c) the Indigenous Land Use Area Agreement between Glenette Greenwool and ors on behalf of the Kowanyama People and Carpentaria Shire Council authorised by the Kowanyama People on 20 November 2012; 10. The rights and interests of the State of Queensland in those parts of the Staaten-Gilbert and Nassau River fish habitat areas within the Determination Area, as shown on Plan FHA-059 and Plan FHA-061 held by the Department of Agriculture, Fisheries and Forestry and the interests of persons entitled to access and use those habitats. 11. The rights and interests granted by the State of Queensland pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licenses, permits or authority pursuant to the Fisheries Act 1994 (Qld) and regulations, declarations or management plans made under that Act. 12. The rights and interests granted by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, statutory fishing rights, or other statutory rights pursuant to: (a) the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act; and (b) any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area. 13. The rights and interests of members of the public arising under the common law, including but not limited to: (a) the public right to fish; and (b) the public right to navigate. 14. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination any existing rights of the public to access and enjoy, the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) coastal waters; (d) beaches; (e) stock routes; and (f) areas that were public places at the end of 31 December 1993. 15. Any other rights and interests: (a) held by the State or Commonwealth; or (b) existing by reason of the force and operation of the Laws of the State and the Commonwealth. Provisions Relevant to the Native Title Rights The relationship between the native title rights and interests described in paragraph 4 and the other rights and interests described in Schedule 4 (the �other rights and interests�) is that: (a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests; (b) where the non-extinguishment principle applies to the other rights and interests, to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests: (i) the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and (ii) if the other rights and interests are later removed or otherwise permanently cease to operate, either wholly or partly, the native title rights and interests will again have effect to the extent of the removal or cessation of the other rights and interests; (c) the other rights and interests and any activity that is required or permitted by or under and done in accordance with the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests; and (d) some aspects of the exercise of the native title rights and interests recognised in paragraph 4(e) are regulated by the provisions of the Kowanyama Pastoral Area ILUA. Definitions If a word or expression is not defined in this order and is defined in the Native Title Act 1993 (Cth), it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words defined in this order, the words and expressions used have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions: �Determination Area� means the land and waters described in Schedule 2 and shown on the plan in Schedule 3, and to the extent of any inconsistency between them, Schedule 2 prevails; �Laws of the State and the Commonwealth� means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; �Local Government� has the meaning given in the Local Government Act 2009 (Qld); �Natural Resources� includes: (a) animals; (b) plants; and (c) charcoal, wax, resin, clay, soil, sand, shell, gravel, rock or other such material naturally occurring in the land and waters of the Determination Area, but does not include: (d) animals that are the private personal property of another; (e) crops that are the private personal property of another; and (f) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); �Koolatah Station ILUA� means the Udnat Ampungk Indigenous Land Use Agreement (Area Agreement) for Koolatah Station Pastoral Holding between Glennette Greenwool & ors and Elrose Enterprises Pty Ltd ACN 101 640 591 dated 23 February 2006; �Kowanyama Pastoral Area ILUA� means the Kowanyama Pastoral Area Indigenous Land Use Agreement (Area Agreement) between the Applicant, the Abm Elgoring Ambung Aboriginal Corporation, MDH Pty Ltd, Douglas Price, Harvest Home Holdings Pty Ltd and the State of Queensland authorised by the Kowanyama People on 20 November 2012; and �Water� has the meaning given to it in the Water Act 2000 (Qld) or any subsequent legislative instrument. Further provisions The native title is not held in trust. (b) The Abm Elgoring Ambung Aboriginal Corporation, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) is to: (i) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and (ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth). 12. Paragraphs 1 � 10 will take effect on the agreements referred to in item 9 of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.